Wednesday, 22 September 2010

Pragmatism and precedent? Territorial order and sovereignty-based disputes

Territorial and sovereignty-based disputes remain important sources of violence in international political life and this remains so despite the evolution of the modern international law doctrine around the management and mitigation of these disputes. Indeed, international law is most obviously premised on the respect for states’ territorial integrity and a powerful, perhaps pragmatic impulse for the preservation of order through exclusive state territoriality.

The pragmatism associated with sovereignty norms and the rights of states, such as territorial integrity, conflicts with the principle of national self-determination and cosmopolitan language of human rights obligations. Self-determination has found a place at the core of the international legal doctrine but at a cost; in its international legal guise it is far removed from its original, political ideological guise.

An emerging remedial right of self-determination has been discussed by academics and international lawyers in recent years. The remedial right would afford an expression of external self-determination, and potentially a right of secession, in cases where a minority people was subject to the wholesale abuse of an oppressive regime.

The article argues that the regional geopolitical context of South Asia cannot readily adopt norms that work to undermine territorial sovereignty. Minority groups in India, a polity broadly based upon a notion of social and political plurality, mean that both the suppression of self-determination groups in the region and instances of external self-determination are intolerable. This is not to deny the existence of a precedent in the remedial right to self-determination, but it is to argue that this might be more easily achieved in other regions first.

The piece concludes that territorial borders can only remain a source of violence in international politics despite the weight of international law that has emerged precisely to mitigate territorial conflict. Regional actors' sharing of broader social and political schemas, beyond the confines of the international legal doctrine, might realise the potential for change that is immanent in existing practice and, specifically, the remedial right to self-determination.

Read the full article here.

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